Post on 09-Sep-2018
This document relates to the UK Withdrawal from the European Union (Legal Continuity)
(Scotland) Bill (SP Bill 28) as introduced in the Scottish Parliament on 27 February 2018
SP Bill 28–EN 1 Session 5 (2018)
UK WITHDRAWAL FROM THE EUROPEAN UNION
(LEGAL CONTINUITY) (SCOTLAND) BILL
——————————
EXPLANATORY NOTES
INTRODUCTION
1. As required under Rule 9.3.2A of the Parliament‘s Standing Orders, these Explanatory
Notes are published to accompany the UK Withdrawal from the European Union (Legal
Continuity) (Scotland) Bill, introduced in the Scottish Parliament on 27 February 2018.
2. The following other accompanying documents are published separately:
a Financial Memorandum (SP Bill 28–FM);
a Policy Memorandum (SP Bill 28–PM);
statements on legislative competence made by the Presiding Officer and the Scottish
Government (SP Bill 28––LC).
3. These Explanatory Notes have been prepared by the Scottish Government in order to
assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and
have not been endorsed by the Parliament.
4. The Notes should be read in conjunction with the Bill. They are not, and are not meant to
be, a comprehensive description of the Bill. Where a section or schedule, or part of a section or
schedule, does not require any explanation or comment, none is given.
OVERVIEW OF THE BILL
5. The Bill seeks to ensure that, to the greatest extent possible, continuity of law is
maintained on UK withdrawal from the EU. This is to ensure certainty, stability and
predictability for the people who live and work in Scotland and those who do business here and
with Scotland in Europe. To achieve this, the Bill does three main things:
it retains in domestic law EU law currently operating in devolved areas,
it gives the Scottish Ministers the powers needed to ensure that devolved law
continues to operate effectively after UK withdrawal, and
it gives the Scottish Ministers the power to, where appropriate, ensure that Scotland‘s
devolved laws keep pace after UK withdrawal with developments in EU law.
6. The Bill contains 38 sections and three schedules, as follows:
This document relates to the UK Withdrawal from the European Union (Legal Continuity)
(Scotland) Bill (SP Bill 28) as introduced in the Scottish Parliament on 27 February 2018
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Section 1 sets out the purpose and effect of the Bill.
Sections 2 to 5 provide for EU law in devolved areas, as it operates on exit day, to be
retained in Scots law.
Sections 6 to 9 set out some exceptions to the retention of EU law.
Section 10 sets out how retained (devolved) EU law should be interpreted by courts
and tribunals.
Sections 11 and 12 contain the powers to be used by the Scottish Ministers to ensure
that retained (devolved) EU law continues to operate effectively after UK
withdrawal.
Section 13 contains a power to keep pace after UK withdrawal with developments in
EU law.
Sections 14 to 16 provide for the scrutiny of regulations made using the main powers
in the Bill.
Section 17 requires UK Ministers (and others) to seek Scottish Ministers‘ consent
before making subordinate legislation that contain devolved provision that modifies
or otherwise affects the operation of retained (devolved) EU law.
Sections 18 to 22 contain some financial matters relating to the Bill, including
powers to provide for, or modify existing, fees and charges.
Sections 23 and 24 contain rules about the publication of retained (devolved) EU
law.
Sections 25 and 26 provide rules of evidence for the purpose of applying retained
(devolved) EU law in legal proceedings.
Sections 27 to 38 contain general and final provisions, including interpretation
provision, repeals of spent references to EU law a definition of ―exit day‖ and a
scheme for scrutinising regulations that need to be made urgently.
Schedule 1 contains further repeals of spent references to EU law.
Schedule 2 contains consequential, transitional, transitory and saving provision.
Schedule 3 contains an index of defined expressions.
COMMENTARY ON SECTIONS
PART 1 – PURPOSE AND EFFECT OF ACT
Section 1 – Purpose and effect of this Act
7. Section 1(1) sets out that the purpose of the Bill is to make provision in connection with
the prospective withdrawal of the UK from the EU and to ensure the effective operation of
devolved Scots law on and after UK withdrawal.
8. On the UK‘s withdrawal from the EU, the limits on the Scottish Parliament‘s legislative
competence in section 29(2)(d) of the Scotland Act 1998 will empty of meaning and EU law
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(Scotland) Bill (SP Bill 28) as introduced in the Scottish Parliament on 27 February 2018
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obligations will no longer apply to the UK. Subsection (2) prevents the Bill, or any provision
made under it, from having effect in law, so far as it would be incompatible with EU law, before
any relevant EU law ceases to have effect in Scotland. It postpones the effect of any provision
contained in or made under the Bill that would be incompatible with EU law until after the
provisions of EU law giving rise to the potential incompatibility cease to have effect as a
consequence of UK withdrawal. Subsection (3) takes account of the possibility that different
provisions of EU law might cease to apply on different days, e.g. in the context of a transitional
period for UK withdrawal.
9. Subsection (4) defines when a provision is within devolved legislative competence for the
purpose of this section.
PART 2 – RETENTION OF EXISTING EU LAW
Saving and incorporation of existing EU law
Section 2 - Saving for devolved EU-derived domestic legislation
10. Section 2 corresponds to clause 2 of the European Union (Withdrawal) Bill1 (―EUWB‖).
It ensures that existing domestic devolved legislation which implements EU obligations remains
on the domestic statute book after the UK leaves the EU.
11. If nothing else were done, secondary legislation made under the European Communities
Act 1972 (―ECA‖) would lapse when that Act is repealed as part of UK withdrawal. Doubt
would also be cast over the continuity or effect of other legislation which was made in
consequence of, or on the assumption of, the UK being a member state of the EU, or which
refers to the EU. This section therefore provides for devolved EU-derived legislation to be
retained as part of Scots law on UK withdrawal, despite withdrawal and despite the repeal of the
ECA.
12. Subsection (1) provides that devolved EU-derived domestic legislation remains in place
and continues to have effect on and after exit day. Subsection (3) sets out which legislation is
devolved for this purpose.
13. Subsection (2) sets out what is covered by devolved EU-derived domestic legislation:
Subsection (2)(a) covers devolved instruments made under the ECA section 2(2)2 or
paragraph 1A of schedule 2 to implement the UK‘s obligations under EU law.
Paragraph 1A allows for ambulatory cross-references3 to EU instruments. This
means that references to EU instruments will automatically update when an EU
1 The European Union (Withdrawal) Bill was introduced in the UK Parliament on 13 July 2017. It, and
accompanying documents, can be found at:
https://services.parliament.uk/bills/2017-19/europeanunionwithdrawal/documents.html. 2 ECA section 2(2)(a) is used to implement (or enable the implementation of) EU obligations or rights under the EU
Treaties. Section 2(2)(b) is used to deal with matters arising out of or related to those obligations or rights. 3 An ambulatory reference is a reference to an EU instrument which operates as a reference to that instrument as it is
amended from time to time.
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instrument is amended. Paragraph 1 of schedule 2 of the Bill makes further
provision about ambulatory references.
Subsection (2)(b) covers other legislation that, while not made under ECA section
2(2), was included in an Act of the Scottish Parliament or made using other powers
for the purpose of implementing an EU law obligation. For example, the
Environmental Assessment (Scotland) Act 2005 in part implements Directive
2001/42/EC on the assessment of the effects of certain plans and programmes on the
environment. Section 5 of the Criminal Justice (Scotland) Act 2016 implements
Directive 2012/13/EU on the right to information in criminal proceedings.
Devolved law on food safety is often made to ensure enforcement of EU obligations
but is normally made under the powers in the Food Safety Act 1990 and ECA section
2(2).
Subsection (2)(c) covers legislation which is connected to, but does not fall within
the definitions of, the legislation preserved by subsection (2)(a) or (2)(b). It ensures
that provisions which are tied in some way to EU law, or to domestic law which
implements EU law, can continue to operate properly post exit. For example, it will
ensure that a provision that goes beyond the minimum needed to comply with
requirements under EU law (known as ‗gold plating‘), is not excluded. This will
allow these provisions to be amended by the powers in the Bill so that they still work
effectively after UK withdrawal.
Subsection (2)(d) covers other provisions which otherwise relate to the EU or EEA.
For example where there is a cross-reference to a definition contained in an EU
instrument those provisions will fall within the definition and would be retained.
14. Subsection (4) provides that the preservation of devolved EU-derived legislation is
subject to the exceptions in sections 6 to 9, which provide for some exceptions to the retention of
EU law.
Section 3 – Incorporation of devolved direct EU legislation
15. Section 3 corresponds to clause 3 of the EUWB. Directly-applicable EU law is given
effect in the UK by ECA section 2(1), ―in accordance with the EU Treaties‖. The two main
treaties are the Treaty on European Union (―TEU‖) and the Treaty on the Functioning of the
European Union (―TFEU‖). That provision ensures that, for example, EU Regulations are
directly applicable and binding in all member states (see Article 288 TFEU).
16. When these treaties no longer apply to the UK, if nothing else were done, this entire body
of law would no longer have effect in domestic law. This section provides for this direct EU
legislation to continue to have effect as part of Scots law. It does this by converting devolved
direct EU legislation into Scots law at the point of exit on UK withdrawal, despite withdrawal
and despite the repeal of the ECA.
17. Subsection (1) therefore provides for the retention of devolved direct EU legislation.
Where legislation is retained under this provision, it is the text of the legislation itself, including
any recitals, that will form part of Scots law.
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18. Subsection (2) sets out what is covered by devolved direct EU legislation:
Subsection (2)(a) converts EU regulations, EU decisions and EU tertiary legislation
(now known as delegated and implementing acts) as they have effect immediately
before exit day. These terms are defined in section 27. Section 2(a)(i) provides that
this does not include exempt EU instruments (defined in section 29). The definition
of exempt EU instruments reflects the fact that certain EU instruments did not apply
to the UK because the UK did not adopt the Euro, or because the UK participated in
only some aspects of the EU acquis in the field of freedom, security and justice.
Section 2(a)(ii) also excludes EU decisions that were addressed only to a member
state other than the UK. Section 2(a)(iii) excludes from conversion any EU-derived
domestic legislation under section 2 that reproduces the effect of an EU regulation,
decision or tertiary legislation. This is to avoid duplication on the statute book after
exit.
Subsections (2)(b) and (c) ensure the conversion into Scots law of any relevant EU
regulations, decisions and tertiary legislation as they apply to the European
Economic Area (―EEA‖). The covers the European Economic Area Act 1993 which
makes the EEA Agreement one of the ―EU Treaties‖ for the purposes of the ECA
and section 2(1) and (2) ECA apply to provisions of the EEA Agreement. This
means that direct EU legislation applies to the EEA by virtue of its inclusion in the
Annexes to the EEA Agreement with any adaptations that are necessary for it to
apply in the EEA context. This direct legislation, as adapted, then flows into Scots
law as a result of ECA section 2(1). Protocol 1 to the EEA Agreement contains
horizontal adaptions which set out general interpretative provisions that apply
throughout the Annexes to the Agreement. For instance, whenever EU acts refer to
nationals of an EU member state, the reference is, for the purposes of the EEA
Agreement, also understood as a reference to nationals of European Free Trade
Association states.4
Subsection (2)(b) therefore converts any Annex to the EEA Agreement to the extent
that it relates to those EU instruments which are converted by subsection (2)(a). The
effect of this is to bring into devolved Scots law EU Regulations, decisions and
tertiary legislation as they apply and are adapted for the EEA context. As with the
EU version of instruments, where domestic enactments saved under section 2
reproduce the effect of an EU instrument, these adapted instruments are not
converted under this section. Again, this is to avoid duplication on the statute book
after exit.
Subsection (2)(c) converts Protocol 1 to the EEA agreement as it was immediately
before exit.
19. Subsection (3) contains the definition of ―devolved‖ for the purpose of the retention of
direct EU legislation.
20. Subsection (4) ensures that direct EU legislation is only retained so far as it is operative
immediately before exit day, reflecting the fact that the application of some EU legislation may
4 ―Switzerland (also in EFTA) is not part of the EEA Agreement, but has a set of bilaterial arrangements with the
EU.‖
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be staggered. If the date of application of any provision falls after exit day, the provision is not
converted.
21. Subsection (5) clarifies that section 3 will only convert the English language version of
direct EU legislation into Scots law. Other language versions can continue to be considered as
aids to interpretation by the courts
22. Subsection (6) provides that the conversion of devolved direct EU legislation is subject to
the exceptions in sections 6 to 9.
Section 4 – Saving for devolved rights etc. under section 2(1) of the ECA
23. Section 4 corresponds to clause 4 of the EUWB. As well as the EU law retained by
sections 2 and 3, other aspects of EU law will have to be retained if continuity of law on exit day
is to be achieved. For example, the EU Treaties confer rights directly on individuals which can
currently be relied on in domestic law. If nothing else were done, these rights would lapse when
these treaties no longer apply to the UK. This section provides for these other rights, etc., to be
retained as part of Scots law on UK withdrawal, despite withdrawal and despite the repeal of the
ECA.
24. Other rights which are retained in Scots law as a result of this section include multilateral
agreements to which the EU is a party and which confer directly effective rights, such as the
Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation
in Respect of Parental Responsibility and Measures for the Protection of Children, in relation to
cross-border child cases and the enforcement of judgments relating to children.
25. Subsection (2) contains the definition of ―devolved‖ for the purpose of this section.
26. Subsection (3) provides that rights, etc., are only retained under this section where they
have not been retained under either section 3 or implemented by domestic implementation (and
are therefore retained under section 2).
27. Subsection (4) clarifies that this section only retains rights, etc., recognised in decisions
of courts made before exit day.
28. Subsection (5) contains the definition of ―devolved jurisdiction‖ for the purpose of the
recognition of these rights, etc..
29. Subsection (6) provides for the retention of these rights, etc., to be subject to the
exceptions in sections 6 to 9.
Section 5 – General principles of EU law and Charter of Fundamental Rights
30. Section 5 ensures that the general principles of EU law and the Charter of Fundamental
Rights continue to be part of Scots law, so far as they have effect in EU law immediately before
exit day and so far as they relate to anything to which section 2, 3 or 4 of the Bill applies.
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31. The general principles of EU law are part of the EU law which member states are bound
to comply with. Many of them have no express basis in the Treaties. For example, the following
have been recognised as general principles by the Court of Justice of the European Union:
proportionality (see ABNA C‐453/03, C‐11/04, C‐12/04 and C‐194/04
EU:C:2005:741, paragraphs 76‐85),
non-retroactivity (see Moravia Gas Storage AS C-596/13 P, paragraph 32),
fundamental rights (see Hauer 44/79, EU:C:1979:290, paragraph 15),
equivalence, or non-discrimination against EU law (see Rewe C-33/76, paragraph 5),
effectiveness (see Van Schijndel, C‐430/93 and C‐431/93, EU:C:1995:441, paragraph
19).
32. The general principles are applied by the Court of Justice and domestic courts when
determining the lawfulness of legislative and administrative measures within the scope of EU
law and are also an aid to the interpretation of EU law. Domestic law that is within the scope of
EU law and EU legislation (such as Directives) that do not comply with the general principles
can be challenged and disapplied. Administrative action taken under EU law must also comply
with the general principles.
33. The Charter of Fundamental Rights is a codification of general principles of EU law
relating to human rights.
34. If nothing else were done, the status of the general principles and the Charter would not
be clear. This section therefore expressly provides for them to be retained as part of Scots law
on UK withdrawal, despite withdrawal and the repeal of the ECA.
35. Subsection (1)(a) retains the general principles and the Charter on exit day, to the extent
that they had effect in EU law immediately before exit day. Subsection (1)(b) ensures that they
only form part of Scots law so far as they relate to the law that is saved and incorporated into
Scots law by sections 2 to 4. Currently, the general principles and the Charter would be relevant
in relation to actions that are within the scope of EU law (for example, the manner in which a
Directive was implemented by a member state). Under the Bill, the equivalent after UK
withdrawal will be action that is taken that is within the scope of the law retained under sections
2 to 4. A public authority that is acting under retained EU law will therefore require to comply
with the general principles.
36. Subsection (2) provides for equivalent rights of action based on a failure to comply with
the retained general principles and the Charter and provides that enactments or rules of law can
be dis-applied or quashed and that conduct can be quashed or declared unlawful by the courts.
This provision applies to the extent that there is a right of action in Scots law immediately before
exit based on a failure to comply. It will therefore be necessary to show that the action
complained of related in some way to the law that has been saved or incorporated as an
equivalent to action that is taken within the scope of EU law.
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37. Subsection (3) clarifies that it is only the general principles as recognised by the Court of
Justice before exit day that are retained by subsection (1).
38. Subsection (4) contains the definition of ―retained (devolved) general principles of EU
law‖ and ―retained (devolved) Charter‖ for the purpose of this section.
39. Subsection (5) provides for the retention of the general principles and the Charter of
Fundamental Rights to be subject to the exceptions in sections 6 to 9.
Exceptions to savings and incorporation
Section 6 – Principle of the supremacy of EU law
40. Section 6 corresponds to clause 5(1) to (3) of the EUWB. The principle of supremacy
means that domestic laws must be disapplied or quashed by the courts if they are found to be
inconsistent with EU law. In Scotland, this is also reflected in the devolution settlement through
the provision in section 57 of the Scotland Act 1998 that the Scottish Ministers have no power to
make any subordinate legislation or do any other act so far as the legislation or act is
incompatible with EU law, and in the provision in section 29 that an Act of the Scottish
Parliament is not law so far as it is incompatible with EU law.
41. Subsections (1) and (2) provide that, while this principle does not apply to laws made on
or after exit day, it will continue to apply to law made before exit day. What this means is that
legislation made after exit day which is inconsistent with EU law retained by the Bill will take
precedence over earlier legislation. But where a conflict exists between pre-exit Scots law and
retained EU law, then the retained EU law is to be preferred. The principle is not however
relevant to provision that is made under the Bill in preparation for the UK‘s exit from the EU
unless subsection (3) applies.
42. The principle of supremacy also means that domestic law must be interpreted, as far as
possible, in accordance with EU law. This duty will not apply to Scots law that is passed or
made on or after exit day, but subsection (2) preserves this duty in relation to devolved Scots law
that is passed or made before exit.
43. Subsection (3) sets out that the principle of supremacy operates even where the retained
EU law has been modified (for example, using the powers in this Bill), where that is consistent
with the intention of the modification.
44. Subsection (4) contains the definition of ―devolved‖ for the purpose of this section.
Section 7 – Challenges to validity of retained (devolved) EU law
45. Section 7 corresponds to paragraph 1 of schedule 1 of the EUWB. It provides that, after
UK withdrawal, there can be no challenge to the validity of retained EU law on the basis that the
underlying EU instrument was invalid. Subsection (2) sets out exceptions to this rule. It does
not apply where a pre-exit day decision of the Court of Justice has invalidated a law, or where
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the Scottish Ministers have set out in regulations a type of challenge to validity that can still be
made.
46. Subsection (3) provides that this does not affect any rights of action accruing before exit
day.
47. Subsection (4) allows regulations under this section to provide for challenges that would
otherwise have been against an EU institution to be against a Scottish public authority instead.
Section 8 – Rule in Francovich
48. Section 8(1) corresponds to paragraph 4 of schedule 1 of the EUWB. The rule in
Francovich (C‐6/90 and C‐9/90 [1991] ECR I‐5357) allows damages to be claimed against a
member state for a failure to implement EU law fully. The rule only applies if the relevant law
was intended to confer rights on individuals, if the breach is sufficiently serious and if there is a
direct causal link between the breach and the damage suffered by the individual.
49. This section excepts the rule from being retained as part of Scots law after exit day. This,
however, is subject to the specific transitional provision in subsection (2) which provides that the
abolition of Francovich damages does not apply in relation to a right of action that existed before
exit day. The transitional provision in paragraph 27(3) of schedule 8 of the EUWB preserves
Francovich rights only if proceedings have been instituted but not yet decided. Under this Bill,
in contrast, Francovich damages will therefore continue to be available for failures arising before
UK withdrawal whether or not proceedings were initiated before exit day.
Section 9 – Interpretation of sections 6 to 8
50. Section 9 corresponds to paragraph 5 of schedule 1 of the EUWB. It clarifies that the
references in sections 6 to 8 to the principle of the supremacy of EU law and the rule in
Francovich are to be read as references to them as they stood on exit day and not as they might
operate in EU law after UK withdrawal.
Interpretation of retained (devolved) EU law
Section 10 – Interpretation of retained (devolved) EU law
51. Section 10 corresponds to clause 6 of the EUWB. It sets out how the law retained by the
Bill is to be interpreted on and after UK withdrawal.
52. Subsections (1) and (2) explain the relationship between the case law of the Court of
Justice and courts and tribunals exercising jurisdiction in relation to the law retained by the Bill
after UK withdrawal. Courts and tribunals:
are not bound by decisions made by the Court of Justice after UK withdrawal,
cannot refer any matter to the Court of Justice after UK withdrawal, but
may have regard to things done by the Court of Justice and other EU institutions after
UK withdrawal if considered appropriate.
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53. Subsection (3) provides that questions about retained (devolved) EU law are to be
decided, as far as is relevant, in accordance with case law and with regard to the limits of EU
competencies. This interpretative obligation exists even when this law has been modified using
the main powers in the Bill, given the definition of ―retained (devolved) EU law‖ in subsection
(9) (which defines it to include that law as it is amended from time to time).
54. Subsection (4) provides that this is subject to section 11(7) which enables regulations to
disapply this interpretative rule if it is appropriate in any particular case: for example, where the
application of the case law would no longer be relevant. This approach to interpretation is
different from the approach in clause 6(3) of the EUWB, which applies the interpretative rule
only if the retained EU law has not been modified.
55. Subsections (5) to (7) provide that, unlike other courts, the two highest courts in relation
to devolved matters in Scotland – the Supreme Court in its devolved jurisdiction and the High
Court of Justiciary as a criminal court of appeal – are not bound by retained (devolved) EU or
domestic case law. Retained (devolved) case law is treated in the same way as judgments from
these courts would be. These courts are required to use the same test as they would when
deciding whether to depart from their own previous decisions, when deciding whether to depart
from retained (devolved) EU case law.
56. Subsection (8) contains a definition of ―devolved jurisdiction‖ for the purpose of this
section.
57. Subsection (9) contains definitions for the purposes of the Bill.
PART 3 – MAIN POWERS IN CONNECTION WITH UK WITHDRAWAL
Regulation making powers
Section 11 – Dealing with deficiencies arising from UK withdrawal
58. Section 11 corresponds to clause 7 of the EUWB. It gives the Scottish Ministers the
powers needed to make sure that retained (devolved) EU law continues to operate effectively
after UK withdrawal.
59. This power can only be used where:
there is or would be a deficiency in retained (devolved) EU law,
that deficiency is caused by UK withdrawal from the EU, and
it is necessary to make provision in order to correct that deficiency.
60. Where these conditions are met, the Scottish Ministers may make provision in regulations
as they consider appropriate for the purpose of correcting the deficiency.
61. Subsection (2) contains a list of the things that amount to a deficiency, such as where
retained (devolved) EU law no longer has a practical application, confers functions on an EU
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institution, makes provision for reciprocal arrangements which are no longer appropriate or
contains references to the EU which will no longer be appropriate on UK withdrawal.
62. Subsection (3)(a) establishes that deficiencies also exist where anything similar to the
types of deficiency listed in subsection (2) arises as a result of UK withdrawal. Subsection (3)(b)
provides Scottish Ministers with a regulation-making power allowing them to set out other types
of deficiency which can be addressed through the use of this power.
63. Subsection (4) clarifies that retained (devolved) EU law is not deficient simply because it
is inconsistent with a development in EU law that takes place after UK withdrawal. Section 13
contains a power concerning post-withdrawal developments in EU law.
64. Subsection (5) establishes that the power in subsection (1) may be used to make any kind
of provision that could be made by an Act of the Scottish Parliament.
65. Subsection (6) sets out some of the things that can be done using the power, such as
transferring EU functions to public authorities in Scotland or establishing new public authorities
to carry out those functions.
66. Subsection (7) allows these regulations to disapply the interpretative duty set out in
section 10(3).5
67. Subsections (8) and (9) set out limits on the use of this power:
it cannot be used to impose or increase taxation, make retrospective provision or
create certain types of criminal offence (broadly, those punishable with a sentence of
more than 2 years),
it cannot be used to implement the UK withdrawal agreement from the EU,
the Scotland Act 1998 (and the protected subject-matters listed in section 31(5) of
that Act), the Equality Act 2006 and the Equality Act 2010 are protected from
modification,
protections relating to judicial independence cannot be removed,
functions conferred on public authorities in Scotland must be broadly consistent with
the purpose of the authority.
68. Subsection (10) provides that the power expires and is no longer available to the Scottish
Ministers two years after exit day.
69. Subsection (11) clarifies that a deficiency can include something arising out of UK
withdrawal taken together with the effect of the Bill.
5 See para 53 of these Explanatory Notes.
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Section 12 – complying with international obligations
70. Section 12 corresponds to clause 8 of the EUWB. It gives the Scottish Ministers the
powers needed to make sure that devolved law in Scotland continues to comply with the UK‘s
international obligations after UK withdrawal.
71. This power can only be used where:
there is or would be a breach of the UK‘s international obligations,
that breach is caused by UK withdrawal from the EU, and
it is necessary to make provision in order to correct that breach.
72. Where these conditions are met, the Scottish Ministers may make provision in regulations
as they consider appropriate for the purpose of correcting or preventing the breach.
73. Subsection (2) establishes that the power may be used to make any kind of provision that
could be made by an Act of the Scottish Parliament.
74. Subsections (3) and (4) set out limits on the use of this power:
it cannot be used to impose or increase taxation, make retrospective provision or
create certain types of criminal offence (broadly, those punishable with a sentence of
more than two years),
it cannot be used to implement the UK withdrawal agreement from the EU,
the Scotland Act 1998 (and the protected subject-matters listed in section 31(5) of
that Act), the Equality Act 2006 and the Equality Act 2010 are protected from
modification,
protections relating to judicial independence cannot be removed,
functions conferred on public authorities in Scotland must be broadly consistent with
the purpose of the authority.
75. Subsection (5) provides that the power expires and is no longer available to the Scottish
Ministers two years after exit day.
Section 13 – power to make provision corresponding to EU law after exit day
76. Section 13 gives the Scottish Ministers the power to make sure that, where appropriate,
the law in devolved areas keeps pace with developments in EU law after UK withdrawal.
77. Subsection (1) gives Ministers the power, by regulations, to make provision that would
correspond to provision in EU law after UK withdrawal. Paragraphs (a) to (c) set out the
different types of EU law that provision may be made in relation to.
78. Subsection (2) clarifies the extent of Ministers‘ ability to adapt provision made under
subsection (1) so that it operates effectively in Scots law despite the UK no longer being a
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member of the EU. The adaptations which can be made using this power are similar to those
which can be made to retained (devolved) EU law on UK withdrawal using the powers in
sections 11 and 12. It contains a list of the sort of adaptations that may have to be made.
79. Subsection (3) establishes that the power may be used to make any kind of provision that
could be made by an Act of the Scottish Parliament.
80. Subsection (4) sets out some of the things that can be done using the power, such as
providing that new EU functions should be carried out by public authorities in Scotland or
establishing new public authorities to carry out those functions.
81. Subsections (5) and (6) set out limits on the use of the power:
it cannot be used to impose or increase taxation, make retrospective provision or
create certain types of criminal offence,
it cannot be used to implement the UK withdrawal agreement from the EU,
the Scotland Act 1998 (and the protected subject-matters listed in section 31(5) of
that Act), the Equality Act 2006 and the Equality Act 2010 are protected from
modification,
protections relating to judicial independence cannot be removed,
functions conferred on public authorities in Scotland must be consistent with the
general objects and purposes of the authority.
82. Subsections (7) and (8) provide that the power expires and is no longer available to the
Scottish Ministers 5 years after exit day. Scottish Ministers may, by regulations subject to the
affirmative procedure, extend that five-year period by a period of up to five years, or extend any
such further period by up to five years, and so on.
Scrutiny of regulations
Section 14 – scrutiny of regulations under sections 11, 12 and 13
Section 15 – consultation on draft proposals
Section 16 – explanatory statements: appropriateness, equalities, etc.
83. Sections 14 to 16 provide for scrutiny of the main powers in the Bill.
84. Instruments that make any of the following types of provision are subject to an enhanced
form of affirmative procedure:
establishing a new public authority,
giving a currently-exercised EU function to a newly-created public authority,
abolishing an existing EU function without providing for a replacement equivalent
function.
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85. Under this enhanced procedure, an instrument must be laid for 60 (rather than 40) days in
the Scottish Parliament before the date on which it is expected to come into force. Before laying
an instrument, the Scottish Ministers must consult on the proposal and must have regard to any
representations made. When the instrument is laid, it must be accompanied by a statement
setting out the details of the consultation, the representations that were received and any changes
made as a result.
86. Section 14(7) to (9) sets out the consequences of a failure to comply with the 60-day
laying period. The instrument may still be made, but the Scottish Ministers must explain the
failure to comply to the Presiding Officer. This corresponds to the provision in section 31 of the
Interpretation and Legislative Reform (Scotland) Act 2010 regarding a failure to comply with
laying requirements under that Act.
87. Instruments that make any of the following types of provision are subject to the
affirmative procedure:
giving a currently-exercised EU function to an existing public authority,
imposing, or making provision relating to, a fee or charge,
creating or widening the scope of a criminal offence,
creating or amending a power to legislate, such as adjusting an existing power to
make subordinate legislation or creating a new power.
88. Otherwise, instruments made under these powers are subject to the negative procedure.
89. Section 16 provides for all instruments made under these powers to be accompanied by
an explanatory statement, setting out certain matters relating to the making of the instrument:
that the Scottish Ministers consider that it does no more than is appropriate,
whether it modifies any provision of equalities legislation and if so, what its effect is,
that the Scottish Ministers have had regard to their duties under equalities legislation,
a report of any consultation required under section 15, and
an explanation of the instrument, the reasons for making it, the pre-withdrawal law
being modified by it, and its effect on retained (devolved) EU law.
90. Section 16(7) requires the Scottish Ministers, if they cannot make such a statement, to set
out the reasons why.
91. Section 16(8) requires the Scottish Ministers to arrange for the publication of these
statements.
92. Section 16(9) provides that the Scottish Ministers do not have to comply separately with
the requirement to make an explanatory statement if they have previously done so for an
equivalent instrument (for example, where a draft has been withdrawn and re-laid with minor
modifications).
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Consent to certain UK instruments
Section 17 – Requirement for Scottish Ministers’ consent to certain subordinate legislation
93. Section 17 provides that subordinate legislation making devolved provision which affects
the operation of the law being retained by sections 2 to 5 can only take effect if it has been
consented to by the Scottish Ministers. This would, for example, include the use of the powers
in clauses 7 to 9 of the EUWB, should they become law.
94. Subsection (1) sets out when the consent of the Scottish Ministers is required. Consent is
required:
for any statutory instrument containing devolved provision,
which is made under a power conferred or modified by an Act of Parliament which
receives Royal Assent after this section comes into force, and
where the devolved provision would modify or affect the operation of retained
(devolved) EU law or anything that would become retained (devolved) EU law after
exit day.
95. Subsection (2) provides that devolved provision made without the Scottish Ministers‘
consent is of no effect.
96. Subsection (3) explains when a function is modified by an Act of Parliament such as to
require the Scottish Ministers‘ consent under this section.
97. Subsection (4) contains the definition of ―devolved provision‖ for the purpose of this
section.
PART 4 – FINANCIAL MATTERS
Preparatory expenditure
Section 18 – Preparatory expenditure
98. Section 18 corresponds to section 12(2) of the EUWB. It enables the Scottish Ministers
to incur expenditure in preparing for the use of the powers in the Bill.
99. This provides an underlying power for preparatory activities which applies only in
advance of provision being made in regulations under the Bill. It does not remove the need to
follow the usual Budget Act processes under the Public Finance and Accountability (Scotland)
Act 2000 for any expenditure using this power. This means that changes to budget have to be
processed by the annual Budget Bill, Autumn Budget Revision or Spring Budget Revision by
regulations under that bill, in advance of expenditure or at the next available budget event.
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Powers in connection with fees and charges
Section 19 – Power to provide for fees and charges
Section 20 – Power to modify pre-exit fees or charges
Section 21 – Scrutiny of regulations under sections 19 and 20
Section 22 – Relationship to other powers
100. These sections set out the Scottish Ministers‘ powers to make provision relating to fees
and charges, where those fees and charges relate to a function of a public authority provided for
by this Bill.
101. Section 19 corresponds to paragraph 1 of schedule 4 of the EUWB. It provides that,
where a public authority has been given a function using the main powers in the Bill, the Scottish
Ministers may by regulations enable it to charge fees or other charges in connection with
carrying out that function. Subsection (2) contains an illustrative list of some of the things that
this power may do. In particular it may set the amounts of fees or charges or say how they are to
be determined, for example by a formula. It may also provide for how the money is collected
and spent. Subsection (2)(c) provides that regulations made under this power can sub‐delegate
this power to the public authority that has the function. Where they do, the use of this power will
be subject to the affirmative procedure, and the exercise of the sub-delegated power will be
subject to whatever arrangements for scrutiny are set out in the relevant provisions. Where this
power is used to impose a new fee or charge then it is subject to the affirmative procedure,
otherwise its use is subject to the negative procedure.
102. Section 20 corresponds to paragraph 6 of schedule 4 of the EUWB. It gives the Scottish
Ministers a power to modify secondary legislation about fees or other charges created before UK
withdrawal using the powers in the ECA or section 56 of the Finance Act 1973. Section 56 of
the Finance Act contains a specific power for fees or other charges connected to EU obligations.
Subsection (2) contains a list of purposes which this power may be used for. The use of this
power is subject to the negative procedure.
103. Section 22 corresponds to paragraphs 5 and 10 of schedule 4 of the EUWB. It clarifies
that these powers do not affect other powers in the Bill which may be used to make provision
concerning fees and charges e.g. to ensure it creates no implied restrictions on the use of any
other powers.
PART 5 – PUBLICATION AND RULES OF EVIDENCE
Publication of retained (devolved) direct EU legislation, etc.
Section 23 – Duty to publish retained (devolved) direct EU legislation, etc.
Section 24 – Exceptions from duty to publish
104. Section 23 corresponds to paragraph 1 of schedule 5 of the EUWB. To ensure that
retained (devolved) EU law is accessible after UK withdrawal, this section requires the
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publication by the Queen‘s Printer for Scotland of, amongst other things, retained (devolved)
direct EU legislation.
105. Subsection (1) requires the Queen‘s Printer for Scotland to arrange for the publication of
certain retained (devolved) EU law and certain treaties.
106. Subsection (2) sets out which instruments and international agreements are covered by
the duty.
107. Subsection (3) contains the definition of ―devolved‖ for the purpose of this section.
108. Subsection (4) permits, but does not require, the Queen‘s Printer to publish decisions of
the Court of Justice or other documents published by EU entities.
109. Subsection (5) permits the Queen‘s Printer for Scotland to publish anything else
considered useful connected to publication under this section, for example, amended versions of
retained (devolved) direct EU legislation which reflect any changes made using the main powers
in the Bill, or guidance associated with retained (devolved) direct EU legislation.
110. Subsection (6) limits the duty to publish to instruments as they stand on exit day.
111. Section 24 provides for exceptions to the duty where the Queen‘s Printer for Scotland is
directed that instruments or categories of instruments need not be published.
Rules of evidence
Section 25 – Questions as to meaning of EU instruments
112. Section 25 corresponds to paragraph 2 of schedule 5 of the EUWB. ECA section 3
provides for questions as to the meaning or effect of EU law to be treated as questions of law in
domestic courts and resolved in accordance with decisions of the Court of Justice. If nothing
else were done, on the repeal of the ECA questions of EU law would fall to be treated in Scottish
courts the same way as the law of any other jurisdiction, as a question of fact. Questions of EU
law, even after UK withdrawal, may be important or necessary for the determination of how
retained (devolved) EU law operates, for example where a court needs to have regard to the
meaning or content of a Directive (which is not retained by the Bill). Section 25 therefore
provides that where determining the meaning or effect of EU law is necessary for a court to
interpret retained (devolved) EU law, then judges in Scottish courts should continue to determine
the meaning or effect as a question of law.
Section 26 – Power to make provision about judicial notice and admissibility
113. Section 26 corresponds to paragraph 4 of schedule 5 of the EUWB. ECA section 3
provides for judicial notice of the Treaties, the Official Journal of the European Union and of
decisions of the Court of Justice. This means that they are, in law, within the knowledge of the
court and do not require to be proved. If nothing else were done, on the repeal of the ECA the
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text of EU instruments and decisions would have to be proved in court. This section gives the
Scottish Ministers the power to set out rules for judicial notice and admissibility after UK
withdrawal.
114. Subsection (1) allows the Scottish Ministers, by regulations, to provide for judicial notice
or the admissibility in legal proceedings of certain matters. These are set out in subsection (6)
and include retained (devolved) EU law.
115. Subsection (2) allows these regulations to impose conditions on the admissibility of
documents.
116. Subsection (3) allows these regulations to modify any provision made by or under an
enactment. Subsection (5) confines this to legislation that has already passed.
117. Subsection (4) provides for these regulations to be subject to the affirmative procedure.
PART 6 – GENERAL AND FINAL PROVISIONS
Interpretation
Section 27 – Interpretation: general
118. Section 27 defines some terms used in the Bill.
Section 28 – Meaning of “exit day”
119. Section 28 allows the Scottish Ministers to appoint ―exit day‖, the day on which a
number of provisions and powers in the Bill will come into effect. The day appointed will be the
day on which the UK ceases to be a member of the EU.
Section 29 – Meaning of “exempt EU instruments”
120. Section 29 corresponds to schedule 6 of the EUWB. It sets out the instruments which are
excepted from being retained under section 3 (incorporation of devolved direct EU legislation).
These include:
EU decisions which do not apply in the UK under a relevant Protocol,
decisions relating to common foreign and security policy under Title V of the Treaty
on European Union,
EU regulations which do not apply in the UK under a relevant Protocol, and
EU tertiary legislation made under an exempt EU decision, regulation or a directive
which does not apply under a relevant Protocol.
121. Subsection (6) sets out which are the relevant Protocols for the purpose of this section.
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Regulations
Section 30 - Regulations
122. Section 30 provides for the powers in the Bill (except for the commencement powers) to
be able to be used to make ancillary provision.
Section 31 – Scrutiny of regulations in urgent cases
123. There may be the need, on occasion, to make regulations under the Bill urgently. Where
regulations under the Bill are subject to the affirmative procedure, section 31 therefore allows
them to be made before being laid before the Scottish Parliament.
124. Subsection (2) sets out that this may be done when the Scottish Ministers consider that it
is necessary to make the regulations urgently.
125. Subsection (3) requires the regulations to be laid as soon as possible after being made.
126. Subsection (4) provides for the regulations to expire unless they are approved by
resolution of the Scottish Parliament within 28 days of being made. Subsection (5) contains rules
for the calculation of that 28 day period.
Ancillary provisions
Section 32 – Ancillary provision
127. Section 32 allows the Scottish Ministers to make ancillary provision.
Section 33 – Repeal of spent references to EU law etc.
Schedule 1 – Further repeals of spent references to EU law
128. When the UK withdraws from the EU, the Scotland Act will contain a number of spent
references to EU law. Section 33 and schedule 1 tidy up these references by repealing them.
Section 34 – Consequential, transitional, transitory and saving provision
Schedule 2 - Consequential, transitional, transitory and saving provision
129. Section 34 and schedule 2 set out how the Bill will operate on coming into force.
130. Many references to EU instruments are ambulatory in effect, meaning that they refer to
the EU instrument as it is updated or amended from time to time. Paragraph 1 of this schedule
corresponds to paragraph 1 of schedule 8 of the EUWB. It sets out how existing ambulatory
references to direct EU legislation (principally EU regulations) should be construed after UK
withdrawal. These references will stop updating after exit day and will instead become
references to the retained version of the relevant EU instrument.
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131. Paragraph 2 corresponds to paragraph 2 of schedule 8 of the EUWB. It sets out how
other ambulatory references should be construed after UK withdrawal. These references also
stop updating after exit day. Since there is no retained equivalent to many things, such as EU
Directives, this paragraph provides that the references should be construed as a reference to the
version having effect immediately before exit day.
132. Paragraph 3 corresponds to paragraph 3 of schedule 8 of the EUWB. It describes the
effect that UK withdrawal will have on existing powers to make subordinate legislation.
Paragraph 3(1) provides for existing powers to be capable of amending retained (devolved)
direct EU legislation. Paragraph 3(2) sets out that this does not affect the procedure that the
legislation would be subject to. Paragraph 3(3) provides that implied restrictions requiring
powers to be exercised compatibly with EU law cease to apply after UK withdrawal.
133. Paragraph 4 corresponds to paragraph 5 of schedule 8 of the EUWB. It confirms that
future powers to make subordinate legislation may, unless the contrary intention appears, modify
retained (devolved) direct EU legislation.
134. Paragraphs 5 to 8 contain consequential amendments to the Interpretation and Legislative
Reform (Scotland) Act 2010.
135. Paragraph 9 corresponds to paragraph 25 of schedule 8 of the EUWB. It contains general
transitional, transitory or saving provision, establishing that anything done or in force before exit
day (or in the process of being done) relating to the law retained by the Bill is continued in
effect. This clarifies that, for example, a license issued under an EU law regime before exit day
continues to have effect after exit day.
136. Paragraph 10 corresponds to paragraph 28 of schedule 8 of the EUWB. It clarifies that
instruments made using the main powers in the Bill do not expire when those powers expire, and
that any power created is not affected.
Final provisions
Section 35 – Index of defined expressions
Schedule 3 – Index of defined expressions
137. Section 35 and schedule 3 set out an index of the expressions defined in the Bill.
Section 36 – Commencement
Section 37 – Repeal of this Act
138. Section 36 provides for the commencement of the Bill by the Scottish Ministers.
139. Section 37 provides for the Scottish Ministers to be able, by regulations subject to the
affirmative procedure, to repeal the Bill or any provision of it, should the Bill be passed by the
Scottish Parliament.
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Section 38 – Short title
140. Section 38 provides for the short title of the Bill.
This document relates to the UK Withdrawal from the European Union (Legal Continuity)
(Scotland) Bill (SP Bill 28) as introduced in the Scottish Parliament on 27 February 2018
SP Bill 28–EN Session 5 (2018)
UK WITHDRAWAL FROM THE EUROPEAN UNION
(LEGAL CONTINUITY) (SCOTLAND) BILL
EXPLANATORY NOTES
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